Ajmal Kasab And Abolition Of The Death Penalty In India:
Some Comments And Resources

By N. Jayaram

10 October, 2012Countercurrents.org

“This country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that, having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”( India's first law minister and one of the framers of the constitution, Dr. B.R. Ambedkar – Writings and Speeches, Vol. 13, page 639, Govt. of Maharashtra Publication).

Now is not the time, people say, when asked why more is not being said and written against the death penalty pronounced on Ajmal Kasab , the young man from Pakistan convicted of the 2008 terror attacks in Bombay.

If not now when?

Today is the 10th World Day Against the Death penalty .

On 29 August 2012 , the Supreme Court confirmed the death penalty pronounced on him. Two days later Maya Kodnani , a former minister in the cabinet of Gujarat Chief Minister Narendra Modi, was convicted of her role in the killing of 97 people in the anti-Muslim pogrom of 2002 and sentenced to 28 years in jail. Babubhai Patel, known as Babu Bajrangi , leader of the Hindu extremist Bajrang Dal in Gujarat , was sentenced to life. Thirty others received lesser sentences. Special Judge Jyotsna Yagnik said death penalty would undermine human dignity.

But more than 2,000 Muslims were massacred in Gujarat in February 2002. More than 10 years after those horrific events, there have been so few convictions.

The less said the better about another pogrom, the anti-Sikh one in 1984 following the assassination of the then prime minister Indira Gandhi. Some of the main ringleaders of that massacre are walking free to this day and have even occupied ministerial posts in the past when all of India knew of their role in what was one of the most traumatic episodes in the life of independent India .

But when it comes to Ajmal Kasab, passions run riot.

Is it because he is a Muslim and a Pakistani that his role in the Bombay attacks are highlighted and so many people are baying for his blood whereas Kodnani and Bajrangi are actually defended by the Hindu rightwing?

Have the Indian state and courts become so blind to the idea of justice and equal treatment before the law?

In August last year, the Tamil Nadu state assembly passed a unanimous resolution calling on the then president Pratibha Patil to reconsider the mercy pleas of Murugan, Santhan and Perarivalan , for their role in the assassination of Rajiv Gandhi in 1991 . When the Jammu and Kashmir Chief Minister Omar Abdullah wondered aloud about the possibility of the legislature in his state doing likewise in respect of Mohammad Afzal Guru , convicted for the attack on the Indian parliament in 2001, leaders of the Bharatiya Janata Party and other s pounced on him.

Eminent senior advocates such as Nandita Haksar and Indira Jaisingh have pointed out the miscarriage of justice in the Afzal Guru case. Writing in Counter Currents( http://www.countercurrents.org/haskar270510.htm ), Haksar has said: “The record of the Sessions Court is enough to show that Mohammad Afzal was denied a fair trial. He did not get a lawyer because he was too poor to pay the fees for a lawyer, and even those who he named refused to represent him (including a well-known human rights lawyer). The lawyer foisted on him by the Sessions Judge did not want to represent Afzal.”

She pointed out that 80 witnesses were produced by the prosecution but that the court-appointed lawyer for Afzal Guru did not cross-examine 56 of those witnesses, even the most crucial ones. And those who were questioned were done so inadequately.

And in respect of Kasab, Haksar wrote ( http://www.mainstreamweekly.net/article1291.html ): “In the midst of the din for revenge the voice of Kavita Karkare has been drowned. She told the media that she did not seek revenge from a 21-year-old Kasab. She wanted that he be given an opportunity to rethink his ideas. This was from the widow of the police officer who was killed by Kasab and his companions.

“Demonising Kasab or Mohammad Afzal helps the cause of both the Hindu and Islamic militants. Understanding them, even if we do not agree with their politics and their ideology may be repugnant to us, forces us to examine our own beliefs, ideology and politics and our ability to provide a viable alternative political ideology.”

Salil Tripathi , writing on the Kasab case ( http://www.livemint.com/2010/05/12202838/The-real-idea-of-justice.html ), had this to say to those baying for his blood: “That he is the sole surviving terrorist means the anger directed at him is multiplied many times over. But think for a moment why: It is not as if Kasab's accomplices managed to escape. They died, either taking their own lives, or falling to the bullets of Indian security forces. Kasab's survival is a form of punishment for him: He sought the reward of martyrdom. Denying him that reward will keep him miserable for the rest of his life – he won't get the instant gratification he seeks.”

“Mercy tempers justice, makes it less exacting, more humane. Excluding a fellow human being from entitlement to mercy has nothing to recommend it except a very base blood lust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, less blood-thirsty world behind for our children, we have to curb our instinct for bloody retribution.”

On the very day the Supreme Court confirmed Kasab's sentence, the Times of India carried an interview with Justice A.P. Shah ( http://articles.timesofindia.indiatimes.com/2012-08-29/interviews/33451351_1_death-penalty-bachan-singh-case-supreme-court ), in which he said: “The criterion of rarest of rare cases (as set out in the 1980 Bachan Singh case) hasn't resulted in any satisfactory solution. The Supreme Court's attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.”

This arbitrariness, subjectivity and inconsistency is glaringly evident in the way Indian courts, governments, the media and the public have reacted to the Kasab and Kodnani cases.

In August this year, 14 retired judges signed separate letters to President Pranab Mukherjee pointing out that death sentences given to nine people by various two-judge benches of the SC were "contrary to the binding dictum of rarest of rare".

It is not as if India is a stranger to abolition of the death penalty. Throughout history, there have been instances of rulers showing generosity and mercy in their treatment of criminals. The State of Travancore had abolished the death penalty, only to get it back upon union with India following independence. And some activists in Kerala are seeking to have the state assembly move a resolution for the abolition of capital punishment.

of a chief judge in Bombay in the years 1804-1811 Sir James Mackintosh , who oversaw a complete halt in executions and later noted: “Two hundred thousand men have been governed for seven years without capital punishment, and without an increase of crime." Although his successors reinstated it, the city was to used it sparingly henceforth.

The BJP's own leader, L.K. Advani , as home minister in the Atal Behari Vajpayee government, negotiated with Portugal to gain the extradition of Abu Salem , convicted for the 1993 serial blasts in Bombay, by waiving the death penalty. That is because Portugal is part of the European Union, all of whose members are committed abolition of capital punishment and to decline extradition of wanted fugitives to countries which retain the death penalty.

Moreover, the BJP has been less strident in demanding the death penalty in the cases of the Tamils convicted for Rajiv Gandhi's assassination and especially Balwant Singh Rajoana , prime accused in the 1995 assassination of Punjab chief minister Beant Singh.

A comparison of these cases leads to the followin g conclusion: had the Tamils, Rajoana and Afzal Guru, not to speak of Kasab, managed to fly out to an abolitionist country, they could have avoided the death penalty.

This charade ought to end. India 's media and civil society ought to apply greater pressure on the politicians to proceed towards a moratorium, preparatory to abolition of the death penalty, so that the country can stand tall in the company of the majority of states that have done so in law or practice already, as Amnesty International has shown ( http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries )

“We compared homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 96 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong , by contrast, has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore executions nor the more recent steep drop producing any differential impact.”

Hong Kong was under British rule until 1997 and the abolition of the death penalty came about as a result of Britain 's own abolition. China had agreed to respect Hong Kong 's status as an independent jurisdiction for 50 years until 2047 (although there have been some worrying cases of extraordinary renditions).

There are other arguments against the death penalty which have been compiled in this link:

The author, N. Jayaram, a journalist now based in Bangalore after more than 23 years in East Asia (mainly Hong Kong and Beijing) and 11 years in New Delhi, was with the Press Trust of India news agency for 15 years and Agence France-Presse for 11 years and is currently engaged in editing and translating for NGOs and academic institutions. He writes a blog: http://walkerjay.wordpress.com/